A-468-78
Manuel Eduardo Riveros-Melo (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Urie JJ. and MacKay
D.J.—Toronto, October 23, 1978.
Judicial review — Immigration Exclusion order —
Applicant, on expiry of visitor status, claimed to be refugee
Immigration officer delayed reporting applicant under s. 22 of
the old Act until claim to refugee status disposed by Refugee
Status Advisory Committee — Claim rejected and s. 22 report
made to Special Inquiry Officer — Report not acted upon
until new Act in force — During inquiry held under s. 20 of the
new Act, applicant again claimed refugee status — Adjudica
tor, instead of adjourning inquiry in compliance with s. 45(1),
pronounced exclusion order Whether or not exclusion order
should be set aside Immigration Act, R.S.C. 1970, c. I-2,
ss. 7(3), 22 Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
20, 45(1), 126(c) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
B. Knazan for applicant.
H. Erlichman for respondent.
SOLICITORS:
Brent Knazan, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: We are all of the view that this
section 28 application must succeed and that the
exclusion order made against the applicant must
be set aside.
The applicant comes from Chile. He was admit
ted to Canada as a non-immigrant on August 28,
1977, for a period of two months. Before the
expiry of his status he reported to the immigration
authorities and claimed to be a refugee. Immedi
ately after the expiry of his status he reported to
an immigration officer pursuant to section 7(3) of
the Immigration Act of 1952 [R.S.C. 1970, c. I-2].
The immigration officer was of the view that the
applicant could not be admitted to Canada, but he
delayed reporting him under section 22 of the
"old" Act until his claim to refugee status had
been disposed of by the "Refugee Status Advisory
Committee". At the end of March 1978, after the
Committee had rejected the applicant's claim, the
immigration officer made a section 22 report to a
Special Inquiry Officer. That report was not acted
upon before the coming into force of the new
Immigration Act, 1976, S.C. 1976-77, c. 52, on
April 10, 1978, with the result that the section 22
report was deemed, by virtue of section 126(c) of
the new Act, to be a report made under section 20
of that Act. An inquiry was therefore held under
the provisions of the new Act. During that inquiry,
the applicant again claimed that he was a refugee
protected by the Convention. The adjudicator,
instead of complying with section 45(1) and
adjourning the inquiry, proceeded to pronounce
the exclusion order which is now under attack.
In our view, the adjudicator was wrong. The
inquiry was held under the new Act following a
report which was deemed to have been made under
section 20 of that Act. The adjudicator had to
comply with the requirements of section 45(1).
Contrary to what was argued, it cannot be said
that the applicant, at the time of the coming into
force of the new Act, had a vested right to see his
claim to refugee status disposed of according to
the provisions of the legislation in force before
April 10, 1978. Under that legislation, the only
persons who had rights in respect of a claim to
refugee status were those who had made that
claim and had later been ordered deported by a
Special Inquiry Officer. Such was not the situation
of the applicant.
The exclusion order will therefore be set aside
and the matter referred back to the adjudicator
with the direction that the provisions of section 45
should be complied with.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.